Copy protection in digital TV: court says FCC went too far

The US communications regulator brought in the "broadcast flag" rule in 2003, seeking to protect the copyright of digital programming when received through regular broadcast media.

It would have required all digital TV receivers manufactured after 1st July 2005 – including televisions, VCRs, and personal video recorders like TiVo – to read signals embedded in over-the-air broadcast television shows that would place certain limitations on how those shows could be played, recorded, and saved.

The sale of any hardware that was not able to "recognise and give effect to" the broadcast flag, including currently existing digital and high-definition television (HDTV) equipment and open source/free software tools, would also have become illegal.

But this, said critics, would interfere with the legitimate activities of technology innovators, librarians, archivists, and academics. Furthermore, they argued, the FCC exceeded its regulatory authority by imposing technological restrictions on what consumers can do with television shows after they receive them.

Lobby groups Public Knowledge and the Electronic Frontier Foundation therefore teamed up with a number of consumer, library and technology groups to fight the rule in the courts, filing suit in January 2004.

On Friday, the US Court of Appeals for the District of Columbia unanimously agreed, ruling that the FCC overstepped its authority when it asserted control over the design of any device capable of receiving HDTV signals.

"The FCC has no congressionally delegated authority to regulate receiver apparatus after a transmission is complete," said the court. "We therefore hold that the broadcast flag regulations exceed the agency's delegated authority".

Public Knowledge President Gigi Sohn welcomed the ruling:

"This case is a great win for consumers and for technology innovation. It's about more than simply broadcasting. It is about how far the FCC can go in its regulations without permission from Congress."

"Had the flag been implemented, Hollywood, acting through the FCC, would have been able to dictate the pace of technology in consumer electronics. Now, thankfully, that won't happen."

Dan Glickman, President and CEO of the Motion Picture Association of America, called the decision "disappointing," and warned that it could create a digital television divide.

"Television audiences – whether they subscribe to cable or satellite service or not - are benefiting from the higher quality picture of digital programming," he said. "If the broadcast flag cannot be used, program providers will have to weigh whether the risk of theft is too great over free, off-air broadcasting and could limit such high quality programming to only cable, satellite and other more secure delivery systems."

The entertainments industry is more likely to plead their cause before Congress than take the case to appeal, according to commentators. Congress is already considering how best to regulate the no-man's land that lies between the encouragement of innovation and the upholding of intellectual property rights.

The FCC has yet to comment.